Intellectual Property Rights for Engineers 2nd Edition pot

Copyright is associated with every literary, dramatic, musical or artistic work, to sound recordings, films, broadcasts and cable programmes.. 2.2.1.2 Copyright in computer programs Comp

Series Editor: J Lorriman

Intellectual Property Rights

for Engineers

2nd Edition

Volume 15 Forecasting for technologists and engineers: a practical guide for better

decisions B.C Twiss

Volume 17 How to communicate in business D.J Silk

Volume 18 Designing businesses: how to develop and lead a high technology company

G Young

Volume 19 Continuing professional development: a practical approach J Lorriman

Volume 20 Skills development for engineers: innovative model for advanced learning in

the workplace K.L Hoag

Volume 21 Developing effective engineering leadership R.E Morrison and C.W Ericsson

Volume 22 Intellectual property rights for engineers, 2nd edition V Irish

Volume 23 Demystifying marketing: a guide to the fundamentals for engineers P Forsyth

Volume 24 The art of successful business communication P Forsyth

Intellectual Property Rights

First edition © 1994 Peter Peregrinus Ltd

Second edition © 2005 The Institution of Electrical Engineers

New cover © 2008 The Institution of Engineering and Technology

by the Copyright Licensing Agency Enquiries concerning reproduction outside those terms should be sent to the publishers at the undermentioned address:

The Institution of Engineering and Technology

Michael Faraday House

Six Hills Way, Stevenage

Herts, SG1 2AY, United Kingdom

www.theiet.org

While the authors and the publishers believe that the information and guidance given

in this work are correct, all parties must rely upon their own skill and judgement when making use of them Neither the authors nor the publishers assume any liability to anyone for any loss or damage caused by any error or omission in the work, whether such error or omission is the result of negligence or any other cause Any and all such liability is disclaimed.

The moral right of the authors to be identified as authors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act 1988.

British Library Cataloguing in Publication Data

Irish, Vivien, 1942–

Intellectual property rights for engineers – 2nd ed

1 Intellectual property – Great Britain 2 Engineers – Great Britain

I Title II Institution of Electrical Engineers

346.4’ 1048

ISBN (10 digit) 0 86341 490 7

ISBN (13 digit) 978-0-86341-490-9

Typeset in India by Newgen Imaging Systems (P) ltd, Chennai

First printed in the UK by MPG Books Ltd, Bodmin, Cornwall

Reprinted in the UK by Lightning Source UK Ltd, Milton Keynes

1 Introduction 1

2.7.1 Infringement by copying – primary infringement 182.7.2 Infringement by trading – secondary infringement 212.8 Exceptions to copyright infringement – fair dealing 22

2.9 Taking action against infringers 25

2.12 Copyright internationally – general and non-technical works 30

2.12.2 TRIPS – Trade-Related aspects of Intellectual

3.3.4 What is excluded from a design registration? 46

3.5 Community Design Right and Registered Designs 54

3.7 Overlap among registered designs, design right and copyright 61

4.7 Patents for computer software 93

5.1.2 What cannot be protected by confidentiality? 102

6.2.7 Keeping a registration in force 123

6.3 Unregistered trade marks, ‘get-up’ and ‘passing-off’ 125

7.1.5 Ownership of design rights and topographies 141

7.1.8 Problems of joint ownership and split ownership 142

7.3 Employee’s compensation under the Patents Act 1977 145

8.3.2 Conditions for an agreement to be anti-competitive 154

8.3.4 Exemptions for technology transfer agreements 158

8.3.7 Exemptions for vertical supply and distribution

9.3 TRIPS – Trade-Related aspects of Intellectual Property Rights 187

10 Management of IPRs 189

Engineers are natural innovators, whether they are involved in the basic development

of a completely new system, or in making an existing system work better

Engineers and scientists1are frequently willing to share their skills and ideas withothers Unfortunately, they sometimes find that others are less than willing to giveappropriate credit or share the profits that can be made from these skills and ideas.Having one’s idea stolen is an unhappy situation, but not an infrequent one

This is where the law comes in, like it or not – and many engineers do not likethe concept of legal controls on ideas at all But we all need salaries or consultancyfees If our work does not result in saleable products or services, then we as engineerswill suffer financially Our employers and work-providers need to make profits, andlegally protecting the innovative efforts of engineers is one way of assisting this.The innovator, be it individual or company, should benefit from the investment oftime, effort and money

What is good for the individual engineer and company is also good for the country

as a whole The value of innovation to the UK is often given an airing by cians, and the latest financial support is set out in the Sainsbury Report of 2004,which provides information about a £50 million grant programme for technologicalinnovation The law to protect such innovation is already in place and a basic know-ledge can provide a good foundation for making sure that innovative effort is put toappropriate use

politi-Many engineers regard legal protection for innovation with misgivings They mayhave tried to find out what is required and been turned off by the difficulty of findingexplanations at the appropriate level Legal text books are not easy reading, even forlawyers

The aim of this book is to show that the relevant law is not as difficult as issometimes imagined, certainly in its general application The minutiae can be left

1 This book was written with engineers in mind, but applies to scientists also, if they will excuse the avoidance of clumsy terminology and interpret the references to ‘engineers’ as meaning ‘engineers and scientists’.

to the legal professionals who love to analyse the fine detail The knowledge of theoverall principles an engineer needs in order to use intellectual property (IP) law neednot be deep, and can even be limited to a recognition of when to seek legal advice.This book goes further than that step, although it is far from being a legal text book.

It is written on the basis that engineers generally like to know the reason for doingsomething It tries to explain the general principles of the law protecting innovation,without going into great detail or giving all the exceptions to a general rule It quotesthe law and legal cases only if the author thinks this will help to make a point clear.The book therefore gives only an outline and general guidance, and expert advice isstill essential in many cases

The general term for the legal rights protecting innovation is intellectual propertyrights (IPRs) The phrase has become better known in the last 10 years or so, as thevalue of IPRs is becoming recognised by management and writers on management,

in addition to government initiatives

In the UK there are six basic IPRs – patents, copyright, registered designs, designright, trade marks and confidential information Some of these terms, such as patents,copyright and trade marks, will be familiar, others less so: design right was introduced

in August 1989, as was topography right, a special form of design right Some types ofrights have applications both to engineering and well beyond it, such as copyright andconfidential information Trade marks are somewhat peripheral to most engineeringwork, but are included because use of trade marks helps manufacturers to sell theirproducts and service providers to attract customers Throughout the book there will

be brief references to non-engineering topics, such as music and film-making, but theexplanations are largely based on technology

The rights often overlap A consumer product might be protected by all six rights

at some stage in its design, manufacture and marketing Different rights last fordifferent lengths of time Some of them are based on statute law, when reference can

be made to the law for definitions, others on common law, based on judges’ decisionsover years or decades, when a reference to case law is the only way to understand theprinciples

This book is structured to explain the six rights in Chapters 2–6 (registered design,design right and topography rights are grouped together in Chapter 3), setting out whateach right protects, how to ensure it applies and the extent to which it can be used

to control the activities of other companies Chapter 7 considers in depth who ownsthe rights and Chapter 8 looks at how their use is constrained by EU law Chapter 9covers licensing, that is, allowing others to use the right in return for payment, andhow to sue if necessary; litigation is rare in the IP field but always generates interest

so it is included for completeness The final chapter summarises various additionalaspects, such as company policies on protection of innovation, and sets out a fewsituations when an engineering manager might need to make decisions about IPRs

To find the chapter appropriate to a particular type of engineering product ormaterial, please refer to Table 1.1 Each type of product or material may be covered

by several different types of IPRs and several chapters may therefore need to beconsulted

Because the laws that give different types of protection are different in structure,

it has not been possible to follow a set format for each chapter although the basicaspects are always present There is inevitably some repetition for clarity, such asbrief comments on ownership and suing for infringement in each of Chapters 2–6,while greater detail on both these topics can be found later in the book

Some aspects are inevitably interwoven EU law affects use of IPRs and theCommission in Brussels continually issues directives relating to IPRs The basicprinciples enshrined in the Treaty of Rome, especially the aspects relating to control

of anti-competitive agreements and abuse of dominant positions, are explained in aseparate chapter Similar principles apply in the USA and Japan Directives affectingparticular IPRs are considered within the relevant chapter

The examples, whether to illustrate the separate IPRs or to illustrate legal pointsfrom case law, have been chosen to have an engineering interest as far as possible.Unfortunately, the next dispute to be heard may alter the legal interpretation andthere are references here and there to ‘current interpretation’ or similar phrases Also,

in the UK, the wording of the law is all important, not the intention of parliament whenthe law was passed Interpretation can only be fairly certain if a legal term has beenconsidered by the courts, and only really certain if the House of Lords has decided

a particular point Readers may find this irritating, but the law is often irritating toengineers and scientists used to greater certainty and predictability

Some chapters contain references to the criminal law because some types ofmisuse of IPRs are criminal offences Such misuses are closer to daily engineeringactivity than the reader might at first think – the use of software is very common andits misuse by copying is extremely easy The position is explained in Chapter 2.There is no such thing as British law One body of law relates to England andWales, and usually Northern Ireland: Scottish law is quite separate In the IPR area,there are few practical differences although Scotland has separate courts and differentlegal terminology In general, references to English law and the English courts willusually extend to the whole of the UK, in principle at least

The assumption throughout is that the engineer generating an innovation is a UKnational working in the UK Some IPRs, especially patents and copyright, are similar

in other countries and references are sometimes made to the position in importantcountries, such as the USA and Japan Other legal areas, particularly designs andthe law relating to confidentiality, may be very different, and little attempt is made tocompare the position overseas The EU is attempting to harmonise the law on IPRsthroughout all common market countries but has some way to go

TRIPS (Trade-Related aspects of Intellectual Property Rights) is a set of letterswidely used in this book Arising from the Uruguay Round of GATT, the GeneralAgreement on Tariffs and Trade, the TRIPS Agreement came into effect in January

1995 It includes copyright, industrial designs, patents, layout of integrated circuitsand undisclosed information including trade secrets It applies to Member Countries

of the World Trade Organisation

The agreement covers the minimum standards of protection to be provided foreach type of IPR, and also general principles applicable to IPR enforcement proced-ures It prohibits discrimination against non-nationals and forbids some countries

being given more favourable treatment than others All Member Countries mustbring their law into compliance While many developed countries already comply,the developing world has a longer period to phase in new arrangements.

Each chapter will give a summary of the relevant TRIPS minimum provisions.Closer to home, the European Patent Office (EPO) has allowed a single patentapplication to extend to all 25 of its members NB: The EPO is NOT a EuropeanCommunity organisation but the membership is a close match, see Table 4.2 TheCommunity Trade Mark Office in Spain is an EU organisation which allows a singletrade mark application to apply to all EU states, and the same applies to CommunityRegistered Design and Community Unregistered Design Right Negotiations on aCommunity Patent failed in 2004, perhaps fatally

The law is continually updated, either by new statute law, by amendments tocomply with EU directives, or by the decisions of the courts There is never a perfecttime to write a general legal book, it will always be out of date almost before it ispublished This book was written when no major changes were in view, so the timing

is reasonably apt

The legal protection of innovation by IPRs is not limited to giant steps forward onthe same scale as those made by Michael Faraday or Isambard Kingdom Brunel Mostengineers make improvements to existing equipment Something that can seem trivialfrom the engineering point of view can be very valuable commercially, and thereforeworthy of protection Engineers are often too modest about their own ideas; the authorbelieves that all innovation is worth at least considering for protection IP law andthe rules that apply to it should never be a hindrance to an engineer’s work Nor needthey be a hindrance if the engineer has a little knowledge of them This book setsout to provide that knowledge

2.1 Introduction and law

Every engineer reading this book is a copyright owner and every engineering companyalso owns copyright The reason is that this particular legal right applies automatically

to an immense range of material

Copyright is associated with every literary, dramatic, musical or artistic work,

to sound recordings, films, broadcasts and cable programmes The implications forthe engineer are clear for the items in the second part of the list, but the definition

of ‘literary work’ is sufficiently broad to cover engineering reports and fications, and computer software; engineering drawings are classified as ‘artisticworks’

speci-The legal right comes into effect automatically, there is no need to register it ortake any action – there is nowhere in the UK that copyright can be registered.Copyright does not protect an idea or a concept, it protects the way in which theidea is expressed, the precise words or the actual drawing There is no test for literary

or artistic merit but the work must be original; it must be created by the engineerand not copied from something else, and the creator must have contributed skill orlabour

In this age of the Internet and rapidly expanding use and misuse of digital copyrightmaterial, international cooperation is essential This area of IP law is highly activeand subject to change in accordance with international and EU agreements

The main law applicable in the UK is the Copyright, Designs and Patents Act

1988, which will be referred to as the 88 Act It was amended in the 1990s to meet

EU requirements and will be amended again A WIPO (World Intellectual PropertyOrganisation) Treaty on Copyright in 1996 led to two EU directives on e-commerceand digital copyright Until both are implemented in all EU countries, the UK isunlikely to change its law, but it will do so Meanwhile, a High Court judge hasreferred to a directive as the basis for his decision On that basis, this chapter is written

as though both directives are fully in force

legal definition for a literary work is ‘any work which is written, spoken or sung’,

so any string of words qualifies as a literary work

Copyright applies from the instant the work is recorded and the law refers to thisbeing ‘in writing or otherwise’ There is a broad definition of writing to cover everyconceivable recording method and use of the word ‘otherwise’ means that the spokenword recorded on tape etc is also included

The 88 Act is silent on quality or literary merit Furthermore, it does notrequire any action to be taken; copyright applies automatically from the momentthe engineer puts words onto paper or screen In either case the work has beenrecorded The record does not have to be a permanent one, it just has to come intoexistence

The author’s intention is also irrelevant An internal memo is legally protected tothe same degree as a fully revised paper written for publication, although the latterwill be a more valuable copyright

The only hint of a criterion is on length; one word is not sufficient to be a copyrightwork This was decided when Exxon Corporation, the oil company, took legal actionagainst an insurance consultancy which began to use the same name Exxon arguedthat it owned copyright in its name but the court held that a single word was notcopyright, even when it was not a normal word, but made up specially as a companyname Titles of books and magazines, particularly when they consist of conventionalwords, are not copyright either

The words do not have to be in a normal language; a list of code words or shorthandsymbols will also be protected by copyright

2.2.1.2 Copyright in computer programs

Computer programs are classified as literary works, the 88 Act is quite specific onthis A moment’s thought shows that this is a reasonable position, since programs havealways been referred to as written in a computer language and the code is arranged

in a manner equivalent to sentences, paragraphs and chapters

The 88 Act does not define ‘computer program’ or even ‘computer’ When thenew law was being debated, parliament decided not to include such definitions Theaim was to ensure that the law will still apply even when technology moves on andnew types of machine are developed which are not recognisable as computers, or newmethods of instructing hardware are devised

A literary work must be recorded in writing before it is protected and the 88 Actdefines this as ‘any form of notation or code, whether by hand or otherwise andregardless of the method by which, or medium in or on which, it is recorded’ Theclear intention is to cover all possible types of program record

In contrast with conventional literary works where mere ‘sweat of the brow’ isgood enough to attract legal protection, this is not enough for electronic copyright;there must be a spark of creativity to comply with EU regulations The size of thisspark is not yet known but it is unlikely to be large and it is difficult to see how anynew program could be excluded For bug-fixing changes, the former copyright willapply.

2.2.1.3 Copyright in databases and compilations

Copyright protection also extends to compilations, for example, a list of names andaddresses in a telephone directory or a parts list The main requirement is originality,that is, that the compilation has not been copied from elsewhere Individual itemsmay appear in other records but the selection and arrangement in the particular compi-lation will be sufficient to attract copyright protection – ‘sweat of the brow’ is goodenough here

At the time the 88 Act was drafted, ‘compilation’ was considered to apply to

electronic databases but this changed in March 1996 when a new, sui generis, database

right came into force, different from copyright but considered here for convenience.Since that date, for a compilation held on a computer as a database, there must

be minimal creativity, the author’s own intellectual input is needed, applied to theselection or arrangement of contents Mere alphabetical listing is excluded Theremust be substantial investment in obtaining or verifying the contents

If the test is met, there will probably be two rights The first will lie in the programthat determines the structure of the database and the way in which files within it areorganised and accessed and will be conventional software copyright The secondconcerns how the material is entered into the database If the entry can be made bythe user, for example, in a small business database for invoicing or mail merge, thendatabase right will be owned by that person, because that person has selected thematerial and the way in which it has been entered

Alternatively, the database itself may be created with a view to its use on acommercial basis An example is the IEE’s database INSPEC, which gives access

to published papers in the fields of electronics, computing and physics; it containsabstracts of over 8 million scientific and technical papers and increases by over

400 000 records a year IEE owns the legal rights

2.2.1.4 The spoken word

Readers who make speeches should know that their spoken words count as literarycopyright, even if they are not speaking from a fully prepared text but from notes oreven extemporaneously The recording of the speech necessary to attract copyrightcan be in writing, such as in shorthand, or otherwise, such as on tape or disk Animportant factor is that the speaker owns the copyright in the record even if he or shedoes not make or authorise the recording There may be other copyrights involved,

so that a shorthand writer will have copyright in a particular shorthand version andthe sound recordist will own copyright in the tape, but the speaker will have overallcontrol through copyright in the words which have been recorded

2.2.1.5 Artistic copyright

Artistic copyright is relevant to engineers because it applies to technical drawings,photographs and to designs of buildings and other structures Copyright protectionextends to this type of material irrespective of artistic quality, although it must beoriginal, that is, not copied from elsewhere

The general term ‘graphic works’ applies to any drawing, diagram, map, chart

or plan This means that any workshop drawing or rough sketch is protected In the1970s there were several legal decisions in which copyright was held to apply todrawings of a car engine, a gear box and an exhaust system

A work of architecture is protected if it is a building, which includes any fixedstructure This probably applies to an overhead line tower or a large, fixed trans-former as well as more conventional structures such as bridges The protection applieswhether the engineering or architectural work is created on paper or on screen or

2.2.2 Copyright in sound recordings and films

All recordings of sound whether of music, the spoken word or other types of noise,such as a bird song, and any type of image on film, are protected by copyright.The method of recording is irrelevant, so sound on tape, compact disk or digital audiotape are all included Video tapes and video disks are covered as well as cinematographfilms The intention is that any yet-to-be-invented method of recording sound ormoving images will still be covered by copyright The only requirement is that therecord is not a copy of a previous record

The protection also extends to a recording of a literary, dramatic or musical workmade in such a form that sounds can be produced subsequently This covers making

a record by a silent process, for example, synthesised speech created by a computerprogram

The copyright in the recording is separate from and additional to other copyrightsthat may apply In a recording of a song there will be copyright in the music as amusical work, in the words as a literary work, and in this particular recording Theremay be several different sound recording copyrights of the same song In the case

of a film, there may also be copyright in the book on which the script is based andadditional copyright in the script itself Since 1996, a film sound track has been treated

as if it is part of the film as far as a copyright is concerned

2.2.3 Broadcasts and cable programmes

When sounds or pictures are relayed to the public, whether by broadcasts or by cableservices, there are additional copyrights

2.2.3.1 Broadcasts

For radio or television broadcasts, the term used is ‘transmission by wireless graphy’, that is, by use of electromagnetic energy passing through the atmosphere.The broadcast must be intended for reception by the public, although it can be inencrypted form provided decoding equipment is available to the public, for example,

tele-in pay-as-you-view satellite services

Most broadcasts are intended for reception by individuals, but transmissionsfor limited reception followed by public viewing, such as the live showing at a distantstadium of a sporting event or a pop concert, are also included

The fact that the signals travel part of the way by cable (e.g from a TV studio to

a transmitter tower; from an aerial by cable to houses in a poor TV reception area;from a community antenna TV system) does not alter the position if the broadcastsignals are capable of individual reception elsewhere

A broadcast has its own copyright provided it is not a repeat of an earlierbroadcast This applies in addition to any copyright in the sounds or images oreven a computer program which is being transmitted For an unscripted situation,such as a sports event, the broadcast copyright may be the only copyright thatexists

2.2.3.2 Cable services

Slightly different provisions apply when the sounds or images are sent ically, whether by electrical or fibre optic cable or any other path through a materialsubstance While part of the path may be through the atmosphere, for example,when a live overseas TV programme is provided via satellite, the end user is norm-ally connected by cable, whether the services are available at a fixed time or ondemand

electron-In such an arrangement it is technically possible for information to be sent

in both directions The law is drafted to exclude normal telephone services andconfidential two-way services, such as home banking The wording extends toremote access database services and probably includes home shopping when aviewer receives information on the goods available, although the viewer’s actions

in placing an order would be outside the copyright provisions Closed circuittelevision and TV systems in hotels, hospitals, prisons etc are excluded from thedefinition

The general effect is similar to broadcasting; the transmissions attract their owncopyright provided they are not copies of a previous broadcast or cable transmission

2.2.4 Other copyright works

Copyright also applies to music, plays and conventional artistic works includingpaintings and sculptures It extends to works of artistic craftsmanship such as indi-vidually designed items of furniture It applies to typefaces and to typographicaleditions, that is, the way a literary work is laid out on a page As there is little ofdirect application to engineers in these additional types of work, few further referenceswill be made to them

2.3 Ownership and duration of copyright

In this section, and elsewhere in the book, ‘person’ can mean either a human being

or a company or other corporate body This is the conventional legal use of the word

2.3.1 Literary and artistic works

2.3.1.1 Ownership

The creator of a literary or artistic work owns the copyright in it unless this position

is varied by a legal contract One of the most important contracts in this context is acontract of employment

If an employee creates copyright material as part of his or her job, copyright

is owned by the employer There does not have to be a clause in the contract ofemployment spelling this out and there does not even have to be a written employmentcontract, although that is a rare situation these days It does not matter where or whenthe copyright work was created An employer owns copyright in works created athome, in the evening or at weekends The only criterion is that the work was produced

as part of the employee’s job

If an employee creates material quite unconnected with his or her work, then theindividual owns the copyright in it The position is clear when work and hobbiesare quite separate and the material in question undoubtedly falls in one area or theother A production engineer who writes a children’s book will own the copyright in itpersonally Practical difficulties can arise, however, when work interests and hobbiesoverlap and there is a grey area Each case then has to be looked at individually.Other contracts which affect the ownership of literary or artistic copyright arethose which either explicitly set out who is to own it or those which implicitly governits use because of the surrounding circumstances When Company A places a contractwith an individual consultant or with Company B, for work under which copyright islikely to be generated, the contract terms often include the assignment of copyright

to Company A If the consultant or a representative of Company B signs the contract,then ownership of the copyright is transferred but there must be a document signed

by whoever would otherwise own the copyright The wording can be such that thecopyright is transferred in advance of its creation The effect would be that the con-sultant or Company B never owns the copyright, it always belongs to Company A.Assignment in advance of the work being done is perfectly permissible Alternatively,ownership can be assigned after the copyright work is completed

Suppose, however, the contract makes no mention of ownership: the consultant orCompany B will then own the copyright, but may not have full control over it

If Company A pays for the work, then even without gaining ownership of copyright

it will have some right to use the copyright material because that was the wholepoint of placing the contract If there was a disagreement, a court would almostcertainly find that the company paying for the work had the right, by implication,

to use it The extent of the right might, however, be more limited than that given

by outright ownership For example, the implied right to use the material might belimited to Company A and not extend to other companies within the group to which

Company A belongs Company A certainly could not sell the copyright Explicitterms are always preferable.

If a commercial argument develops about who is to own the copyright it is oftentempting to suggest joint ownership This is a trap for the unwary Whereas each jointowner may copy and otherwise use the material internally within the company, grant-ing permission to others to copy or use it requires the consent of both, or all, co-owners.Before agreeing to joint ownership, this severe restriction must be considered verycarefully

2.3.1.2 Duration of copyright

Whether or not the engineer who devises the material owns the copyright in it, he orshe is important in determining the duration of the legal protection Most copyrightslast for the life of its creator plus a further 70 years The 70 year period runs from

1 January following the year during which the creator died If two or more authorswere jointly involved, so that the contribution of one cannot be separated from thecontribution of the other, the 70 years begins to run on the death of the last survivingcreator

For copyright works generated before 1 January 1996 the duration is life plus

50 years

In an engineering environment it is unlikely that copyright will be important foranything remotely approaching this length of time The life plus 70 year copyright ishowever important for non-technical books, music, plays and films

2.3.1.3 Duration of database right

In the case of a database, the right lasts for 15 years from the end of the year thedatabase was created or made accessible to the public In the case of the IEE’s INSPECdatabase which is continually updated, it is legally arguable that a new copyright iscreated by every addition, so in theory copyright in it will continue indefinitely Thisposition is currently under consideration by the European Court of Justice, and at thedate of writing it seems possible that this argument will be supported

2.3.2 Computer-generated copyright

In all examples so far, generation of copyright material has involved a human being.But technology has reached the stage where this is not necessarily the case and UK lawcaters for a computer itself generating literary or artistic copyright For example,

a computer-generated work is created by an automatically scanning camera, such asthose used in security systems or, more picturesquely, by cameras scanning mountainviews as seen in resorts in the Alps Another example of computer-generated copyright

is the use of a silicon compiler program to design a semiconductor chip layout asconsidered in Section 3.6.4 Similarly, if a human writes a program to translate onecomputer language into another language, when that translation program is run therewill be no human author of the translation produced

If copyright material is created by a computer, copyright is owned by the personmaking the arrangements necessary for that creation This seems to imply a financial

connection; probably the person or company that owns the computer will own thecopyright The copyright lasts for 50 (not 70) years from the end of the year in whichthe copyright material was created.

In addition to copyright, computers can also create registered designs, designrights and topography rights (see Chapter 3)

2.3.3 Sound recordings, films, broadcasts and cable programmes

Copyright of a sound recording or film is owned by the person making the ments necessary for the recording or the film to be made, conventionally the producer,but since July 1994 the producer and the principal director have been held to be jointauthors In broadcasting, the legal person making the broadcast, for example, a broad-casting company, owns the copyright For cable programmes the person providingthe service, that is, the cable company, owns the copyright

arrange-Copyright in sound recordings or films lasts for 50 years from the year the film orrecord was made or, if it is released to the public, 50 years from its release Copyright

in a broadcast or cable programme lasts for 50 years from its first transmission Therights are additional to the separate copyright in a play, song etc included in therecording or broadcast

2.4 Marking

Readers will be familiar with the internationally recognised copyright symbol ©,always used on books and often used on other printed matter The conventionalmarking contains the copyright symbol, the name of the copyright owner and theyear of first publication, as shown at the beginning of this book

For computer programs, it is highly advisable to mark not only the label on thedisk or packaging but also to include a notice on screen, for example, as the first screendisplay when the program is run If the available printing fonts do not include ©, thenthe full word ‘Copyright’ or an abbreviation, such as ‘Copr.’, can be used Databasesshould also be marked

While copyright protection in the UK does not depend on there being such amarking, it is advantageous because it reminds others that they need permission

to make copies and indicates who to ask for permission Another good reason forincluding a mark is that if legal proceedings are started, the marking is presumed toshow the true copyright owner until proved incorrect This means the owner doesnot need to demonstrate ownership, which can be expensive and time consuming.For sound recordings, films and computer programs, the name is presumed to be that

of the copyright owner and any date is also presumed to be the correct date of firstpublication or showing in public

In addition to overt marking of copyright, hidden markings can be used, such

as made-up addresses in a customer list or redundant code in software These ings make it easier to show that copying has occurred without permission, especially

mark-if the person copying claims to have generated the list or program independently

The software bugs that are inevitably present in large programs can be used inthe same way, and a record of the bug-fixing schedule can even pinpoint whichlegal version was illicitly copied See also Rights Management Information inSection 2.7.1.8.

2.5 Moral rights

Moral rights are in addition to the legal rights associated with copyright Thereare two major rights which may sometimes be relevant to an engineer, and twominor ones

Employees only have moral rights in very limited circumstances, so most eers are excluded, except when they create copyright works completely unconnectedwith their occupation However, independent engineers, such as consultants andauthors of text books such as this one, will have moral rights as the work is outsidetheir employment

Paternity rights do not apply to computer programs or to any work created

by a computer without human intervention (see Section 2.3.2) Material preparedfor publication in a newspaper or periodical or for a collective work such as anencyclopaedia, is also excluded, in the last case because keeping track of the multiplemoral rights would be impractical

The right is given only to an individual person and only when there is also

a copyright Paternity right is separate from copyright and cannot be assigned toanother person; the only way it can be transferred is in a Will Copyright and paternityright in the same item can therefore be owned by different people The right lasts forthe same period as copyright, that is, life plus 70 years

Paternity right must be asserted in writing before it becomes legally enforceable,that is, a statement must be made that the creator intends to benefit from it Altern-atively, it can be waived, also in writing Readers may have seen moral right assertions

in books and published articles Surprisingly, having the author’s name on a publishedbook does not count as an assertion of paternity right; there must still be a separatewritten statement of the author’s rights

Although paternity rights only came into existence in the UK on 1 August 1989,when the 88 Act came into effect, they are to some extent retrospective They apply

to copyright created before that date, provided the creator was alive on 1 August 1989and had not assigned or licensed the copyright The retrospective rights do not apply

to films

2.5.2 Integrity right

The second major moral right is integrity right This is the author’s right to object to

a distortion or mutilation of a work when it is published, or to changes made whichare considered to be prejudicial to the honour or reputation of the creator In one ofthe few cases about moral rights reaching a court, it was held that this must meanmore than merely the author feeling aggrieved

The change constituting a distortion etc must be made to the work itself and not

to the way it is treated as a whole, such as including a copyright photograph in anexhibition of which the photographer disapproves Surprisingly, objections cannot beraised to a normal translation of a book or article, even though a poor translation cangive a totally false impression of the original work

In the case of integrity right, employees are not totally excluded but they onlyhave the right to object to derogatory treatment if they are named either at the timethe change is made or on previously published copies of the work Even this limitedright to object does not apply if it is made clear that the creator has not approved ofthe changes

The designer of a building has an integrity right but this is limited so that if

a derogatory change is made, the creator merely has the right to insist on the removal

of his or her name from the structure

Integrity right does not need to be asserted, but it can be waived It lasts for thesame period as copyright, life plus 70 years It cannot be assigned, but can be left in

a Will

As with paternity right, integrity right does not apply to computer programs,works created for newspapers or magazines or multi-authored works, such as ency-clopaedias, but it does apply to copyright material created before the 88 Act cameinto force on 1 August 1989, provided the creator was alive on that day and had notassigned or licensed the copyright There is one exception: films created before thatdate do not attract integrity rights for their directors

2.5.3 False attribution right and privacy right

The first minor moral right is the right not to be wrongly named, that is, not to have

a work falsely attributed to a creator False attribution right lasts for the life of thecreator plus 20 years The second relates to photographs taken under a commission(i.e for payment) for private purposes The photographer owns the copyright but theperson paying for the photograph to be taken can stop it being used for other purposes,such as in a newspaper to illustrate a subsequent news item This is a privacy right,

it lasts for the life of the photographer plus 70 years As with paternity right andintegrity right, the owner cannot assign false attribution or privacy rights, but canleave them in a Will

2.5.4 Misuse of moral rights

If any moral right is infringed, for example, if a book is published without namingthe author who has asserted the right, or has been altered in an objectionable way,the owner of the moral right can sue for what is known as ‘breach of statutory duty’,that is, the user has acted in a way contrary to the owner’s rights given by the 88 Act

If the moral right owner is successful in court, there can be an award of damages

or an injunction to stop the misuse (see Section 9.2.2)

There are some uses of work protected by moral rights which are permitted,such as using it when reporting current events by broadcasts or films etc., or includingthe work incidentally in broadcasts, films or the like; however, the permitted uses arecomplex and are not dealt with in detail here

2.6 Other relevant law

This chapter relates mainly to copyright material that came into being after theCopyright, Designs and Patents Act 1988 came into force on 1 August 1989, butcopyright is a very long-lasting right so it is sometimes necessary to apply earlier law

to a particular situation Succinct generalisation is impossible but a few exampleswill illustrate the need for care

1 The previous Copyright Act of 1956 came into force on 1 June 1957 Before thatdate, broadcasts were not copyright, and the sound track of a film was considered

to be separate from the film; it was a sound recording

2 Under the 88 Act, copyright in a photograph belongs to the photographer, whereasunder the previous act, copyright in a photograph belonged to the person owningthe unexposed film

3 It is not only the previous copyright act that must be considered as other lawsmay be relevant For example, cable programmes did not attract copyright untilthe Cable and Broadcasting Act 1984 came into force on 1 January 1985.For any copyright work created before 1 August 1989, sources other than this bookshould be consulted

2.7 Copyright use and misuse

Ownership of copyright gives two types of legal control The first, as the nameimplies, is the right to stop others from copying the material without permission: this

is known as primary infringement and is covered in Section 2.7.1 The other type

is the right to stop the trading of those illegal copies, called secondary infringement(see Section 2.7.2)

What the owner does not have is the right to control the idea behind the copyrightmaterial Copyright law applies only to the form in which an idea is expressed, to theactual words or the actual drawing, not to the concepts on which the words or drawingsare based So if a technical report describes a test method, it is not infringement of

copyright to carry out the test (but remember it may be patented) You may not copythe words of the description, but you can describe the same test using different words.

If a computer game is based on a new idea, it is permissible to devise another gameusing the same idea, but not to copy the code or the graphics

2.7.1 Infringement by copying – primary infringement

The copying need not have taken place from the original copyright work.Copyright in this book is based on a word-processed text, but that copyright isinfringed by copying the printed version It is even possible that copyright in adrawing could be infringed by working from a verbal description of it

However, there must have been an act of copying Two sets of mathematical tableswill be indistinguishable, but if each devisor can prove it to be an independent creationthere has been no copying and no infringement If a photographer takes a photograph

of a particular scenic view, it is not infringement for another person to photographthe same view, even though the two photographs are virtually indistinguishable; thesecond photograph has been independently created It would, however, be infringe-ment to create a scene in a studio to reproduce a scene in someone else’s photograph:

in that case, there is artistic copyright because the scene is set up artificially and taking

a photograph of the recreated scene is an infringement

A strong similarity is not always proof of copying One also needs to show thatthe alleged copyist has had access to the material which has supposedly been copied

On the other hand, if there is a similarity and access to the original was possible, onemay infer that the material has been copied

2.7.1.2 Copying in a different medium

If a copy is made in a different medium to the original work, such as a photocopy of abook, or a scanned-in digital copy of a photograph, it is still an infringement So long asthere has been a reproduction and the copy has a material form, the law applies to it Sofar as modern technology is concerned, there is a specific reference to ‘storing the work

in any medium by electronic means’, so whatever the format, a copy has been made.Making a short-term or transient copy is still infringement, to cover use of volatilememory Putting words onto a computer screen then deleting them is still a form ofcopying The reader can derive considerable benefit in viewing, say, the contents of

a database, so the definition is an essential one, giving rights of control to the provider

of a database service

This is reflected in the charging mechanism for online access to commerciallyavailable databases, such as IEE’s INSPEC technical abstract service There are three

main ways of access: (a) password-controlled access online where the customer ischarged connection time plus a record displayed charge; (b) password-controlledaccess via a web service offering pay-as-you-go connection without a connectioncharge but with a per record displayed charge and (c) by use of an annual site licencewhere a fixed price gives unlimited access during the year.

An example of an immaterial form, in which case there is no infringement, would

be speaking words aloud without making a copy whether by shorthand or on tape.This type of use is not copyright infringement, but depending on the circumstances

it could count as a performance when it will be covered by the 88 Act in other ways

A performance is not necessarily a theatrical performance, and can include delivering

a lecture or a speech, so repeating someone else’s lecture needs permission

For artistic works, it is infringement of the copyright to make an object in threedimensions from a drawing of that object, but for engineering drawings the specialprovisions of design right (Section 3.2) apply

For architects’ plans of buildings and fixed structures, it is infringement of theplans to construct the building as well as to copy the plans themselves Conversely,copying a building in two dimensions, such as taking a photograph or making a sketch

of it, is not an infringement if the building is on public display, by a special exception

2.7.1.3 Copying part of a work

It is still infringement of copyright if one does not copy everything but uses a

‘substantial part’ This can be judged by quality as well as quantity In a technical context, one line of a well-known song would be considered a substantialpart Copying one frame from a film infringes copyright in the whole film In general,

non-if one is benefiting from use of the copyright work by saving oneself time and effortinstead of producing an independent version, then usually there has been infringement

2.7.1.4 Copying by adaptation

It is primary infringement of copyright to adapt a copyright work, which includestranslating it This can be conventional translation of a book from English into

a foreign language, but the infringement occurs as soon as the translation is recorded

in any way whether on paper or disk

2.7.1.5 Copying computer programs

Computer programs get special attention in the 88 Act While the word ‘translation’

is usually associated with human languages, the wording of the law makes sure it isapplied to computer languages also The owner of copyright in a program can controlits conversion into a different computer language and its conversion into or out ofcomputer code Conversion from source code to object code is therefore included,and vice versa

Computer programs are necessarily a special case as far as copyright law isconcerned because their normal use inevitably involves an act of copying When

an applications program on a disk is loaded onto a personal computer (PC), a copy

is made in a different medium When hardware is running software, parts of the

software code are copied internally, for example, from a read-only memory into aninstruction register; in other words, a copy is made of a part of the program The copymay be transient, but making it is still an infringing act.

Because computer programs cannot be used without an act of copying, it is legallyessential for the copyright owner to give permission for the copying This is usuallydone in a licence specific to the software, especially for applications programs Foroperating software (i.e the software that controls the internal functioning of hardwareand how it interacts with peripheral equipment), there is almost certainly an impliedright The hardware cannot be used without the software, so supply of the hard-ware implies the right to use it Sometimes an operating software licence is grantedspecifically For programs on semiconductor chips, for example, in cars and washingmachines, there is an implied right to use

2.7.1.6 Copying databases

The extraction or reutilisation of a computer-stored database, whether the whole or

a substantial part, is an infringement of database right There is no exception for fairdealing, that is, copying a small part only This is reasonable because most use of

a database involves scanning the contents and rejecting most of it, with only a verysmall part being positively selected and stored by a legal user

2.7.1.7 Broadcasting and other public use

A TV, radio or cable programme has its own copyright, so it is infringement of right to re-broadcast it or include it in another cable programme It is also infringement

copy-of other types copy-of copyright works to include them in broadcasts or transmit them bycable whether the work is a song, a film, a drawing or any other type of copyrightmaterial Transmission by telecommunications system is also included and the wordsapply to short-distance transmission, for example, in a computer network

A copyright owner also has the right to stop anyone issuing copies to the public,provided the owner has not already done so Therefore, even if one legitimatelypurchases copies of a photograph or a report, one is not necessarily permitted to putthem into public circulation If, however, the owner has issued copies to the public,one can then treat the legally acquired copies in the same way as any other propertyand they can be sold or hired out This applies unless the copy is a sound recording,film or computer program, in which case only the owner is allowed to rent them to thepublic The reason is that with modern technology, perfect copies of such recordingscan be made very easily so the owner needs extra control

2.7.1.8 Copy protection

Because computer programs are so easy to copy, some software houses incorporatebuilt-in copy protection devices Devising a program to disable such a device counts

as infringement of copyright in the protected program

Some owners build a Rights Management Information system into Internetproducts using, for example, digital watermarks The information can identifythe work, its author, its owner and the terms and conditions of use of the work

The owner can then keep track of the use of the product and can enforce copyright

if necessary Removing such a system is not allowed and nor is trading in devices toremove it

2.7.2 Infringement by trading – secondary infringement

2.7.2.1 Guilty knowledge

Even if a person does not actually do or authorise the copying without the owner’spermission, a variety of ways of dealing with the work commercially can still beinfringement In all cases the person must know, or have reason to believe, thatthe copies have been made without permission The phrase ‘have reason to believe’extends a long way The courts will assume that engineers have a general knowledge

of the laws applying to their work, including copyright law This would be especiallytrue if they dealt with copyright material, such as computer programs, on a regularbasis A claim of sheer ignorance of the 88 Act would not necessarily give an escaperoute, unless copyright law was extremely remote from one’s normal work Readers

of this book are, of course, now generally aware of the law

2.7.2.2 Imports from abroad

Acquiring copies abroad and importing them into the UK is secondary infringement

of copyright The only exception is for copies imported for private and domestic use.This is hardly likely to extend beyond one copy, which should not be used for anybusiness purposes

So buying a single copy of a computer program in the Far East, where softwarepirates flourish, and bringing it home, is allowed under UK law, but not for use inconnection with professional engineering work

The right to stop imports may also apply to legally made copies The test is whethermaking a copy in the UK would be infringement of the rights of the copyright owner orlicensee There could be infringement of commercial rights For example, books areoften sold in different countries at different prices; import into the UK of low-pricedbooks would be objectionable to a company selling books here at a higher price.The import can sometimes be stopped, depending on the origin EU regulations allowfree movement of goods once they are on the market, so there is no control overbooks originating in another EU country A low-priced import from outside the EUcould, however, be stopped by the owner

If a copyright owner finds out that import of multiple copies is planned, thecustoms and excise authorities can be approached and a request made to treat theinfringing copies as prohibited goods Obviously the more information providedabout the shipment, the better the chance of it being identified Suspect imports areheld in bond until they are checked by the copyright owner

2.7.2.3 Business use

If an engineer knows, or would be assumed by a judge to know, that a copy is illicit,almost anything the engineer does with it could lead to legal action The copyright

owner can sue for infringement if a copy is sold or hired, or offered for sale orhire The same applies if the article is distributed either internally within a business

or outside the company Even possessing the infringing copy in the course of abusiness is an infringement In other words, doing anything which has a professional

or commercial link can be an infringing use

Transmitting an illicit copy over a telecommunications network is infringement

if the person controlling the transmission knows that an infringing copy will bemade when the transmission is received The wording is such that short-distancetransmission, as in computer networking, can be included

The law extends even beyond the commercial dealings with illicit copies tioned above It is also infringement to produce an article which is designed to make

men-an illegal copy of a particular copyright work An example in the music industrywould be making a master from which compact disks can be reproduced withoutpermission This would also apply to importing the master copy, selling it, hiring it

or possessing it in the course of business

General copying devices, such as photocopiers, are not caught by the provisionbecause they are not linked to one specific copyright work

2.7.2.4 Public performances

Engineers whose normal employment involves supplying apparatus for playingsound recordings, showing films or receiving broadcasts or cable programmes inpublic can leave the question of copyright permission to their employers But ‘public’can mean an audience of parents at a school, or the general public in a villagehall, and can include members and guests in a club The performance of a schoolplay watched by parents requires a licence from the Performing Rights Society,because performing a play is otherwise infringement of copyright Similarly, showing

a TV broadcast, cable programme, film or playing music to the public requirespermission

Even if the reader is not involved in the primary infringement, for example,acquiring a copy of the film, there are other types of involvement that could be acause for concern One is supplying the apparatus (or a substantial part of it) onwhich the film or broadcast is to be shown – so lend your video equipment with care!The other is allowing the hall to be used for the event – school governors and parishcouncillors take note Both are secondary infringements of copyright if the personsupplying the apparatus or authorising use of the premises realised that showing thefilm etc would be primary infringement of copyright

There is one exception, which is playing sound recordings in a club, but thedefinition of a club in this context is limited

2.8 Exceptions to copyright infringement – fair dealing

There are several exceptions to the control exercised by a copyright owner Those

of interest to engineers are mainly the exceptions known generally as ‘fair dealing’

In this context the word ‘dealing’ does not imply any commercial transaction or

even the involvement of more than one person, but simply means using the copyrightmaterial in some way.

2.8.1 General business

It is permissible to copy a literary, artistic, musical or dramatic work if one needs thecopy for research or private study The research must be for non-commercial purposes

so all business-related acts fall outside the exception It does not mean that a librarian

at a company research laboratory is allowed to make copies for internal circulation.The permissible amount copied is limited to one complete chapter of a book or up to

5 per cent of a literary work, by agreement with societies representing authors.Librarians in certain designated libraries, such as the IEE library, and educationaland public libraries, can make the single permitted copy for you, but are subject

to severe restrictions on making multiple copies of the same article or extract Thedesignated libraries are also required to charge a fee for the copying, and usuallythere will be a form to be signed stating that the copy is being made for fair dealingpurposes

It is also fair dealing to quote someone else’s words or equations for the purpose

of criticising or reviewing the work in question There must be sufficient ledgement, that is, it must be made clear that a quotation is being used and its sourcemust be identified

acknow-As far as computer programs are concerned, lawful users may make a back-upcopy for security but it is not fair dealing to decompile software in general even forresearch purposes A licensee may decompile to permit the creation of a compat-ible program provided the information needed is not otherwise available and licenceagreements must not forbid such decompilation

2.8.2 Public events

It is also fair to include copyright material when reporting current events, providedthere is sufficient acknowledgement of the original work Any type of copyrightwork can be used in this way, but if the work is reported by a sound recording, film,broadcast or cable programme, there does not have to be an acknowledgement.Taking an example of an actual case, when the football World Cup competitiontook place in June 1990, the BBC had monopoly rights on televising the matches

in the UK British Satellite Broadcasting Ltd (BSB) used short excerpts, less than aminute, of match highlights in its sports news programmes The fact that the materialoriginated with the BBC was acknowledged, even though this was not a requirement.The BBC sued for copyright infringement, but in court the use by BSB was held to

be fair dealing

If an artistic work, recording, film etc is being made and another copyright work

is included as part of the background, then such incidental use is not infringement

If a broadcast commentary of a football match picks up copyright music being playedover the loudspeakers at the ground, or if a film of a street scene includes a pictorialtrade mark which is a copyright work, then no infringement has occurred by reason

of this exception But if the music or the trade mark was deliberately included as afeature of a programme, it would be infringement, not fair dealing.

Exceptions to copyright control also apply to buildings, structures and models onpublic display There is no control over anyone making a drawing, taking a photograph

or including the objects in a TV broadcast or cable programme, but a photograph of acurrent event may not be used without the permission of the owner of copyright in it

2.8.3 Time shifting

A special exception is made for recording broadcasts or cable programmes for thepurpose of time shifting for more convenient viewing in domestic premises There is

no time limit on how long the copy can be kept

It is also permissible to take a still photograph of a TV broadcast or a cableprogramme, again for private and domestic purposes only

2.8.4 Education

Schools, colleges and universities have greater freedom to copy than individuals orcompanies, provided the copying is done for instruction or for setting exams.The act does permit schools to make a limited number of photocopies, which isbroadly speaking 1 per cent of any copyright work in any quarter year This does notinclude sheet music, maps or newspapers, and does not apply if there is a licensingsystem in place

Such a licensing system is run for UK universities, polytechnics and schools

by the Copyright Licensing Agency Limited (www.cla.co.uk), and allows greatercopying than the exception in the act Payments are made by a central authority

to the copyright holders In local authority schools, a sampling system is usedand the photocopying results grossed up to calculate the payments, which coverover 200 million photocopies each year Schools in the private sector also have anagreement In all cases the permitted copying is limited to use for study or teaching

As far as sound recordings, films, broadcasts and cable programmes are cerned, educational establishments are permitted to make copies, provided this isdone by the teacher and for instructional purposes only

con-2.8.5 Technical abstracts

If a technical paper is published in a periodical with an abstract, then copying theabstract is permitted, unless there is a licensing scheme in force This allows theIEE’s abstracting service INSPEC to use author-written abstracts without the needfor permission from each individual

2.8.6 IEE papers

It is a requirement of the IEE that it owns the copyright in the articles published in itsjournals, with rare exceptions such as Crown copyright All IEE journals contain an

explicit copyright notice:

© 2005 The Institution of Electrical Engineers All rights reserved No part of this lication may be reproduced, stored in a retrieval system or transmitted in any form or by any means without the permission in writing of the publisher Copying of articles is not permitted except for personal and internal use, or under the terms of a licence issued by a Reproduction Rights Organisation such as the Copyright Clearance Centre Inc (Ref: 0960-

pub-7919 $20.00) Multiple copying of the content of this publication without permission is always illegal.

The institution is a member of the licence schemes applying in schools anduniversities, as mentioned above

2.8.7 Central licensing scheme

For many years there has been a central body dealing with licensed copying of booksand journals on behalf of authors and publishers The Copyright Licensing Agency(www.cla.co.uk/licensing) authorises copying, collects royalty payments and passesthe appropriate percentage to the author or publisher The agency also administerstwo general photocopying licence schemes, one for companies employing up to

50 people and another for larger companies when the licence fee depends on thenumber of professional employees in the firm

2.9 Taking action against infringers

If the owner of copyright believes the material it protects is being copied withoutpermission, an action for infringement can be started in the civil courts (see Chapter 9)

If the owner wins the action, the court may impose three possible penalties:

• an injunction to stop further copying

• payment of damages to recompense the owner

• delivery-up of the infringing copies

Any combination of the three remedies may be applied

The owner will need to be certain of ownership of the copyright, and good recordsshowing which employee or employees created the work are helpful, or a clear assign-ment document transferring the rights from a third party The owner also needs to beable to show that the allegedly copied work was accessible to the person accused ofcopying An exclusive licensee has the same right to sue as the owner

The alleged infringer can argue in defence that he or she did not know the workwas copyright This does not imply that an engineer can argue ignorance of copyrightlaw, it is directed more towards belief that copyright had expired or did not extend tothis type of material

For the type of copyright material likely to be sold on a market stall, such ascomputer games, there is a special right The copyright owner may seize the copies

in person The right is conditional: the goods must be on display for sale or hire;force must not be used; and the local police must be informed in advance The right

does not extend to copyright material displayed in a permanent place of business,

so the possibilities are limited

2.10 Criminal liability

2.10.1 General criminal offences

Some types of copying or of trading in copyright material are criminal offences Thescope is narrower than the range of infringements set out above, is more closelylinked to business purposes, and stricter proof of the facts is needed In many casesthere must be an ‘article’, in the normal sense of a three-dimensional object, and theperson committing the offence must have known, or had reason to believe, that thearticle was an illegal copy This person will be assumed by the court to have a generalknowledge of copyright law, so the defence of ignorance is unlikely to be available

in most cases The criminal provisions also extend to public performances of literary,dramatic or musical works and publicly showing a film or playing a sound recording.The criminal offences relating to an article that is known to be an infringingcopy are:

1 making the article for sale or hire

2 importing the article into the UK (except for private or domestic use)

3 possessing the article in the course of a business with a view to committing anyact infringing the copyright (e.g intending to copy it)

4 selling, hiring, exhibiting or distributing the article in the course of a business

5 distributing the article so as to affect the copyright owner’s rights in a prejudicialway (e.g depriving the owner of legitimate sales or licence fees)

The penalties are up to 10 years imprisonment (an increase from 2 years was made in2002), an unlimited fine or both In the case of a company found to be offending inthis way, company officials, for example, a director, the company secretary or seniormanager, may be held personally liable if they are aware of what is occurring.The criminal activities most likely to be encountered by engineers relate tocomputer software, but similar principles will apply to other types of copyright work

2.10.2 Criminal misuse of software in business

Making illicit copies of computer programs is extremely easy; all one needs is priate hardware, and in many cases a PC is sufficient to give perfect reproduction.There are two main types of misuse The first is making copies for supply to thirdparties at a lower price than the cost of a genuine licence; this is often called softwarepiracy The other is copying without permission within a company; this will be referred

appro-to as corporate copying or underlicensing

If a company pays for one copy of a program for a PC, such as a word processing

or accountancy package, it does not have the right to make copies for every PC in thecompany, unless the accompanying licence gives this permission Usually it will not,and further licences in return for payment are required This section explains how far

the criminal provisions apply to copies made without such a licence Since this type

of copying is widespread, the legal wording will be considered in detail

The 88 Act states:

A person commits an offence who, without the licence of the copyright owner in the

course of a business distributes, or distributes otherwise than in the course of a business to

such an extent as to affect prejudicially the owner of the copyright an article which is,

and which he knows or has reason to believe is, an infringing copy of a copyright work.

An ‘offence’ means a criminal act

If copies of a program on floppy disk are made, the copies are ‘articles’ in thenormal sense of the word, that is, three-dimensional objects If company personnelmake copies for internal use within the company, this is highly likely to be ‘in thecourse of a business’ The word ‘distributes’ can be applied to supplying the copiesinternally within the company

If legal interpretation did not regard this internal distribution as being in the course

of a business, then the phrase ‘distribution otherwise than in the course of a business’ isapplicable One alternative or the other must apply The copying and internal supplyare certainly prejudicial to the owner of the copyright, who could otherwise haveexpected licence fees for the copies

The phrase ‘he knows, or has reason to believe’ has been interpreted by theAustralian courts in the context of the Australian Copyright Act, and the Judge said

‘knowledge cannot mean any more than notice of facts such as will suggest to areasonable man that a breach of copyright law was being committed’ This statementhas been approved in cases in the English courts Probably, a very junior employeecopying on his or her own initiative would be able to plead ignorance as a defence,but the 88 Act gives more detail on responsibility as follows:

Where an offence committed by a body corporate is proved to have been committed with

the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

Wording similar to this is found in many places in English law In one case it washeld that where the director consents he is ‘well aware of what is going on and agrees

to it’, and that where a director connives he is ‘equally aware of what is going onbut the agreement is tacit’ The company director etc would therefore need to havespecific knowledge of the copying of the disks From a practical viewpoint, a director

of a small company is much more likely to have knowledge of such activities than aboard member of a large corporation

The level of liability has also been considered in a different legal context It willextend only to very senior executives, possibly only those who are named in thecompany accounts It is unlikely to apply, for example, to a purchasing manager in alarge company who knew that programs were always acquired as single copies

At the date of writing, there has been no full hearing in court on corporate copying,but the interpretation above is based on an opinion by a senior barrister and it hasbeen sufficiently persuasive for several large organisations to settle out of court